Citation Nr: 0033168
Decision Date: 12/20/00 Archive Date: 12/28/00
DOCKET NO. 94-39 186 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to an increased disability rating for
service-connected anxiety disorder currently rated as 30
percent disabling.
2. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
K. Gallagher, Counsel
INTRODUCTION
The veteran served on active duty from December 1948 to
December 1949, from August 1950 to October 1, 1953, and from
October 20, 1953 to September 1970.
This matter comes before the Board of Veterans' Appeals
(Board) from a June 1993 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in San Juan, the
Commonwealth of Puerto Rico, which denied an increased
disability rating for service-connected anxiety disorder and
denied service connection for post-traumatic stress disorder
(PTSD).
REMAND
In this case, the veteran has been service-connected for an
anxiety disorder, rated 30 percent disabling, since he
separated from service in 1970. Service medical records show
that the veteran was a prisoner of war (POW) during the
Korean Conflict from November 1950 to August 1953.
In April 1993, the RO received a statement from the veteran
referring to medical evidence that he was submitting to
support a claim for an increased evaluation for his
service-connected nervous condition. Enclosed with the
statement was an examination report from a private physician
dated nearly ten years earlier in September 1983. The
physician stated that the veteran was receiving psychiatric
treatment with the physician under the VA fee basis program.
The diagnosis rendered was post-traumatic stress disorder
(PTSD). Also enclosed was VA Form 10-0048, Former POW
Medical History, completed and signed by the veteran in
October 1983, nearly ten years before the claim. The RO
construed the submission of this medical evidence as a claim
for service connection for PTSD.
A VA Medical Record Consultation Sheet, dated in 1989, is in
the claims file and shows that the veteran was referred for a
psychological evaluation. The copy of the Consultation Sheet
in the record is largely illegible but shows that certain
psychological tests were administered at that time including
the MMPI and PTSD scale.
In May 1993, the veteran underwent a VA PTSD examination.
The examiner diagnosed anxiety disorder, not otherwise
specified, with depressive features, and specifically noted
that the criteria for a diagnosis of PTSD were not found,
either in the symptomatology or in the history of the
veteran.
In June 1993, the RO denied the claims for an increased
rating for anxiety disorder and for service connection for
PTSD. The veteran perfected an appeal of these claims to the
Board. In a November 1994 statement, the veteran requested
that records be obtained from the private doctor whom the
veteran had seen through VA's fee basis program. The RO
attempted to obtain these records in 1995 and 1996 but
received replies from the VA medical center (VAMC) that no
fee basis records were found.
In November 1996, the criteria for evaluating mental
disorders in the VA Schedule for Rating Disabilities were
revised. Compare 38 C.F.R. § 4.132 (1996) with 38 C.F.R.
§ 4.130 (2000). In August 1998, the RO again requested the
records and obtained two additional reports from the private
doctor, these dated in January and July 1984. Both reports
showed a diagnosis of PTSD.
In June 1999, section 3.304(f) of VA regulations, which
pertains to the criteria for establishing service connection
for PTSD, was revised, effective March 7, 1997, the date that
the decision of the United States Court of Appeals for
Veterans Claims (Court) in Cohen v. Brown, 10 Vet. App. 128
(1997), was issued. See 64 Fed. Reg. 32807-32808 (June 18,
1999). The revised regulation provides that a medical
diagnosis of PTSD in accordance with section 4.125(a) of VA
regulations must be of record to fulfill the first
requirement for service connection for PTSD. Section
4.125(a) requires that the diagnosis conform to the fourth
edition of the Diagnostic and Statistical Manual of Mental
Disorders (DSM-IV) and that the diagnosis be supported by
findings on the examination report.
In September 1999, the veteran underwent a VA Mental
Disorders examination. The claims file was apparently not
reviewed by the examiner who noted, "He was seen with
hospital records only." The examiner noted, "The veteran
had a Psychological Evaluation on June 10, 1988, after
referral from the Primary Care Clinic due to his complaint of
memory loss, with a diagnosis of Cognitive Disorder, [not
otherwise specified]." The veteran complained of memory
problems since 1992. The examiner diagnosed generalized
anxiety disorder and cognitive disorder, not otherwise
specified. The RO continued the denial of the claims for
service connection for PTSD and for an increased rating for
anxiety disorder in a February 2000 supplemental statement of
the case in which it provided notice to the veteran of the
revisions to section 3.304(f) and to the criteria for
evaluating mental disorders.
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other
things, this law eliminates the concept of a well-grounded
claim, redefines the obligations of the Department of
Veterans Affairs (VA) with respect to the duty to assist, and
supercedes the decision of the United States Court of Appeals
for Veterans Claims in Morton v. West, 12 Vet. App. 477
(1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S.
Vet. App. Nov. 6, 2000) (per curiam order), which had held
that VA cannot assist in the development of a claim that is
not well grounded. This change in the law is applicable to
all claims filed on or after the date of enactment of the
Veterans Claims Assistance Act of 2000, or filed before the
date of enactment and not yet final as of that date.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 7, subpart (a), 114 Stat. 2096, ___ (2000). See also
Karnas v. Derwinski, 1 Vet. App. 308 (1991).
Because of the change in the law brought about by the
Veterans Claims Assistance Act of 2000, a remand in this case
is required for compliance with the notice and duty to assist
provisions contained in the new law. See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114
Stat. 2096, ___ (2000) (to be codified as amended at 38
U.S.C. §§ 5102, 5103, 5103A, and 5107). In addition, because
the VA regional office (RO) has not yet considered whether
any additional notification or development action is required
under the Veterans Claims Assistance Act of 2000, it would be
potentially prejudicial to the appellant if the Board were to
proceed to issue a decision at this time. See Bernard v.
Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92
(July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)).
Therefore, for these reasons, a remand is required.
Accordingly, this case is REMANDED for the following:
1. The RO should ask the veteran to
state where he has received treatment, if
any, for a psychiatric disorder in the
last two years, and, providing the
veteran with the appropriate release
forms where necessary for private
records, the RO should assist the veteran
in obtaining all treatment records, if
any, not already associated with the
claims file and place them in the claims
file.
In particular, the RO must attempt to
obtain reports of psychological testing
done in 1989 as referred to on the VA
Medical Record Consultation Sheet, dated
in 1989, or, at a minimum, a legible copy
of this Consultation sheet. In addition,
the RO must attempt to obtain the
Psychological Evaluation on June 10,
1988," referred to by the VA examiner in
the September 1999 VA Mental Disorders
examination report. If "June 10,
1988," was a typographical error and the
September 1999 examiner was referring to
more recent psychological testing, the RO
should obtain the recent report of
psychological testing.
2. The RO should schedule the veteran
for a VA psychiatric examination. All
tests deemed necessary by the examiner
for diagnostic or other purposes must be
conducted. The examiner must review all
the pertinent medical evidence of record
and render diagnoses of all psychiatric
disorders currently existing. In so
doing, the examiner must reconcile the
diagnoses of PTSD and anxiety disorder
noted on examination reports in the
record. Concerning this, the examiner
must render an opinion as to whether the
veteran currently meets the criteria for
a diagnosis of PTSD as provided by the
DSM-IV and, if so, whether the current
PTSD is the result of a stressful event
in service and, if so, the examiner
should provide a description of what that
stressful event was. See 38 C.F.R.
§§ 3.304(f), 4.125(a) (2000).
If the examiner diagnoses PTSD, the
examiner should state whether the
diagnoses of PTSD and anxiety disorder
are separate disorders with separate
symptomatology and manifestation or
whether they are diagnoses rendered in
the past at different times to describe
basically the same symptoms that have
been present since diagnosis of anxiety
reaction was rendered on a VA examination
in March 1971. The examiner must provide
a complete rationale for all conclusions
reached.
The examiner should also conduct a
complete mental status evaluation so that
the present degree of disability
resulting from the psychiatric disorders
currently existing may be assessed.
3. Following completion of the above
actions, the RO must review the claims
folder and ensure that all of the
foregoing development have been conducted
and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
Specific attention is directed to the
examination report. If the examination
report does not include fully detailed
descriptions of pathology and all test
reports, special studies or adequate
responses to the specific opinions
requested, the report must be returned
for corrective action. 38 C.F.R. § 4.2
(2000).
The RO and the appellant are also advised
that the Board is obligated by law to
ensure that the RO complies with its
directives, as well as those of the
United States Court of Appeals for
Veterans Claims (Court). The Court has
stated that compliance by the Board or
the RO is neither optional nor
discretionary. Where the remand orders
of the Board or the Court are not
complied with, the Board errs as a matter
of law when it fails to ensure
compliance. Stegall v. West, 11 Vet.
App. 268 (1998).
4. The RO must review the claims file
and ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied. For further guidance
on the processing of this case in light
of the changes in the law, the RO should
refer to VBA Fast Letter 00-87
(November 17, 2000), as well as any
pertinent formal or informal guidance
that is subsequently provided by the
Department, including, among others
things, final regulations and General
Counsel precedent opinions. Any binding
and pertinent court decisions that are
subsequently issued also should be
considered. If the benefit sought on
appeal remains denied, the appellant and
the appellant's representative, if any,
should be provided with a supplemental
statement of the case (SSOC). The SSOC
must contain notice of all relevant
actions taken on the claim for benefits,
to include a summary of the evidence and
applicable law and regulations considered
pertinent to the issue currently on
appeal. An appropriate period of time
should be allowed for response.
5. The RO should readjudicate the claims
for an increased rating for the
service-connected anxiety disorder and
for service-connected for PTSD based on
the evidence in its entirety.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV,
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directs the ROs to provide expeditious handling of all cases
that have been remanded by the Board and the Court. See M21-
1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
BETTINA S. CALLAWAY
Veterans Law Judge
Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).